BEERG Newsletter 37 - EU: CJEU rules on scope of Information and Consultation Directive

It is not often that information and consultation cases come before the European Court. This Greek-originated case is an exception.

The Eoppep case (here) concerns the interpretation of Article 2(a) and Article 4(2)(b) of Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002, establishing a general framework for informing and consulting employees in the European Community.

This case involved a private-law legal entity within the Greek public sector that acts as the administrative agency for the lifelong education and training of employees. In early 2018, three employees were informed that they would no longer be acting as managers but would continue as employees in their respective departments. Two of the three employees objected to the move and complained to the Labour Relations Inspectorate, saying that there had been no prior information and consultation with employee representatives.

The CJEU said that the Directive applied to the organisation, despite its public remit.

However, the Court concluded that there was no obligation for information and consultation regarding the decisions in question. According to Article 4(2)(b) of Directive 2002/14, the right to information and consultation concerns “information and consultation on the situation, structure, and probable development of employment within the undertaking or establishment and on any anticipatory measures envisaged, in particular where there is a threat to employment.” Thus, this right does not refer to individual employment relationships. Moreover, the managerial positions affected by the decisions were not deemed to have a significant impact on the overall employment situation within the company.

Article 4(2)(b) of Directive 2002/14 means that the information and consultation obligation laid down therein does not apply in the event of a change of post for a small number of employees appointed on an interim basis to management roles, where that change is not capable of affecting the situation, structure, or probable development of employment within the undertaking concerned or placing employment more generally under threat.

It is worth noting that it has taken five years for this case to reach the European Court. Referring cases to the CJEU takes time and there is no guarantee that the Court will side with your interpretation of the law. Always worth keeping in mind.